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Freedom of Speech Flashcards

1
Q

Parliament like the Kings had ___ so maybe Const as a way of ___

A

absolute power, protecting freedom

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2
Q

What are two basic ways freedoms protected in Consti

A

structural limits of limited leg powers + Bill of Rights

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3
Q

Bill of Rights only exists because __

A

Anti-Federalists demanded it

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4
Q

Federalist Number 10 Madison basic argument

A

the union (large republic) safeguard against factionalism

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5
Q

Madison envisioned a ___ that would protect the divergent interest of majorities and minorities

A

social structure

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6
Q

Madison thought major source of factionalism is ___

A

unequal distribution of property

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7
Q

What is a faction?

A

group united and adverse to rights of other citizens

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8
Q

What are two ways to cure factionalism?

A

homogenize society (detrimental to liberty) OR control its effects (republicanism)

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9
Q

How to control majority factions?

A

representative govt, refine public views by more temperate electorate

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10
Q

What is weakness of representative govt and how to control

A

betray interests of people BUT larger republics maybe less because elected by more people and greater variety of parties and interests

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11
Q

the primary function of the Bill of Rights is

A

protection from tyranny of the majority

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12
Q

Madison wanted a minimal bill of rights so that it ___

A

would never be violated in emergencies (would make it useless)

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13
Q

What is counterargument to tyranny of majority argument for BoR?

A

expanding Govt power could come at expense of liberty

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14
Q

Blackstone basics on free speech

A

free press essential to free state but doesn’t mean freedom from censure for crim matters

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15
Q

It is okay to punish some speech ex post becuase it is an ___

A

abuse of free will, to preserve order

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16
Q

The Consti rejected the idea of licensing which was ____

A

private institution for licensing prior to pulication

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17
Q

Main idea of Cato Letter 15`

A

freedom of speech as check on tyranny, essential to public liberty

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18
Q

Main idea of Cato letter 38

A

People must be free to criticize the govt, govt is a public trust

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19
Q

Unlike Blackstone. Cato believed __

A

freedom from ex post punishment as long as it doesn’t harm others

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20
Q

Today, prior licensing is ___

A

alive and well

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21
Q

What is US scheme of regulatory licensing?

A

A category of actions is comprehensively barred—unless one receives a license (i.e., permission) from the relevant agency.

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22
Q

What is problematic about regulatory licensing?

A

should be presumption of liberty not restraint, puts burden on person seeking the license

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23
Q

In addition to prior licensing, today there is also a focus on ___

A

punishment after the fact

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24
Q

Problem with both licensing and ex post punishment

A

by expanding coverage of the right (emphasizing both) lose substance

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25
Section 230 rests on the ___
CC
26
First key effect of 230
protects websites from liability for people's posts on them
27
Second key effect of 230
protects website & large providers for taking down stuff (Ham hates)
28
230 is Consti violation because
removes legal obstacles from censoring so companies censor with impunity
29
Through the 230 immunity, ___
Govt privatizes suppression
30
Counterpoint to 230 liability argument
what if it prevents censorship because not exposed to tort liability, not incentivized to take down,
31
key language of 1st amendment
Cong shall make no law
32
What is defamation and case
NYT v. Sullivan, false statement of fact with actual malice
33
What is obscenity
must be in some way erotic (Roth)
34
What are fighting words
personally abusive epithets likely to provoke a violent reaction (Chaplinsky)
35
What is inciting a mob
state has police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Feiner v. New York.
36
Abrams, Holmes dissent
the best test of truth is the power of the thought to get itself accepted in the competition of the market.
37
Cohen v. CA facts
entered a courthouse with a jacket that read fuck the draft
38
The Cohen Court of Appeal held that offensive behavior means
‘behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace
39
Cohen SC holding
w/o more compelling and particularized reason State can't make this four letter word a criminal offense
40
Cohen reasoning 1
conviction rests solely on speech
41
Cohen reasoning 2
doesn't fit into categories of speech Govt can regulate more comprehensively
42
Cohen reasoning 3
Gvt. can only shut off discourse solely to protect others from hearing it is if substantial privacy interests are being invaded in an essentially intolerable manner.
43
Cohen reasoning 4
discord and tumult necessary side effects of freedom of speech
44
Cohen 5
State's reasoning boundless
45
Cohen sets the precedent that the Courts will not __
determine what's offensive or not
46
Cohen ___ of what counts as speech
takes a wide view (wearing a jacket)
47
Blackmun dissent in Cohen argues that wearing a jacket is ___
conduct not speech
48
Synder v. Phelps holding
Tort award inconsistent with 1st under Hustler
49
Synder facts
Westboro Church picketed soldier's funeral to protest gay rights
50
Synder reason
in a public place on a matter of public concern so can't be restricted even if arouses contempt
51
Hustler facts
Hustler magazine ran parody ad depicting evangelist with sexual entendre
52
Hustler holding
Public figures can't recover for IIED without showing defamation
53
Hustler reason 1 & 2`
importance of free flow of ideas, SL for publisher for falsity would have chilling effect
54
Hustler reason 3 & 4
outrageousness is subjective, chilling effect on satire
55
Post office obscenity debate
about limiting a govt service so not repression BUT
56
Williams holding
to protect obscene material that has social value so limit scope of obscenity, overturn convictions for sexually graphic but nonobcene material
57
Hudnut says to be obscene it must have __
offensive descriptions/depictions of sexual conduct with no serious literary, scientific artistic value
58
Hudnut holding
Ordinance discriminates on grounds of content of the speech
59
In Hudnut, the ___ is being judged not the __
law, material
60
Hudnut reasons 1 &2
city's porn defintion dif from obscenity, all cultural stimuli provoke unconscious responses
61
Hudnut reason 3
Consti doesn't make truth necessary condition of free speech
62
Hate speech and 1st amendment
no general hate speech exception
63
WI v. Mitchell
dif between regulating hate speech and punishing some hateful conduct more severely
64
Virginia v. Black holding
1st amendment doesn't protect cross burning, doesn't protect true threats of violence
65
RAV facts
burned a cross on lawn of Black family, charged with violating fighting words
66
RAV holding
“The government may not engage in content- or viewpoint-based regulation of expression, even within otherwise ‘unprotected’ categories of expression, like defamation, obscenity, or asserted ‘fighting words.’”
67
RAV held the ordinance unconstitutional because it prohibits __
otherwise permitted speech solely based on the basis of the subjects the speech addresses
68
RAV reason 1
content based prohibitions are presumptively invalid
69
RAV reason 2
Govt cannot regulate use of fighting words based on hostility or favoritism to the view expressed
70
RAV reason 3
can't have special prohibitions on speakers who express views on disfavored subjects
71
RAV reason 4
compelling govt interest can only be asserted where necessary to serve the compelling interest, not met here
72
Solzhenitsyn takeawar
censoring not just through govt but other institutions and people (social conformity)
73

ConLaw (16 decks)

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